*

 After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and conditions of 10th

Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 11 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

 ARMANDO FERNANDEZ,

Defendant-Appellant.

No. 96-2166

(D.C. No. CV 96-64 SC/JHG, 

CR 90-122 JB)

(Dist. New Mexico)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

On September 25, 1990, the United States District Court for the District of

New Mexico sentenced defendant-appellant Armando Fernandez to 41 months of

incarceration to be followed by four years of supervised release after Fernandez

pled guilty to conspiracy to posses with intent to distribute more than 100

kilograms of marijuana and possession with intent to distribute more than 100
- 2 -

kilograms of marijuana. Fernandez served his sentence and began his period of

supervised release. On October 31, 1992, while on supervised release, the United

States Custom Service arrested Fernandez in El Paso, Texas, for conspiracy to

possess with intent to distribute approximately 291 pounds of marijuana and

possession with intent to distribute over 100 kilograms of marijuana. On October

18, 1993, Fernandez pled guilty to conspiracy to possess with intent to distribute

more than 50 kilograms of marijuana. He was sentenced to 70 months

imprisonment to be followed by a term of supervised release of three years and

was committed to the Federal Bureau of Prisons on June 2, 1994, to serve his

sentence.

Based on Fernandez's 1993 conviction in Texas, Norma Svet, United States

Probation Officer, filed a petition on November 3, 1994, to revoke Fernandez's

supervised release under the terms of his sentence for the 1990 conviction in New

Mexico. On November 16, 1994, the United States District Court for the District

of New Mexico issued a Warrant for Arrest which was lodged as a detainer

against Fernandez on December 5, 1994. On January 16, 1996, Fernandez filed a

Motion to Discharge Term of Supervised Release pursuant to 18 U.S.C.

§§ 3583(e)(1) & (2) in the United States District Court for the District of New

Mexico. Fernandez argued that the supervised release portion of his sentence for

the New Mexico conviction should be dismissed because the government had
1

 The district court denied a certificate of appealability, apparently treating

Fernandez's motion as a motion to vacate, set aside, or correct sentence under 28 U.S.C.

§ 2255. However, as discussed in our December 15, 1997, Order, the certificate of

appealability requirements in the Antiterrorism and Effective Death Penalty Act do not

apply to this appeal.

- 3 -

failed to schedule a revocation hearing within a reasonable time of the detainer

being placed against him. The district court denied the motion on July 1, 1996. 

Fernandez subsequently filed a motion to reconsider which also was denied on

April 2, 19997. Fernandez now appeals.1 

First, Fernandez claims that the government denied him a revocation

hearing within a reasonable time as required by Federal Rule of Criminal

Procedure 32.1(a)(2). Rule 32.1(a)(2) requires that a hearing to revoke probation

or a term of supervised release "shall be held within a reasonable time in the

district of jurisdiction." However, in McDonald v. New Mexico Parole Board,

955 F.2d 631, 633 (10th Cir. 1991), we held that the "hearing requirements and

time limitations" applicable to a final revocation hearing "must be adhered to only

after the parolee is taken into custody as a parole violator." Id. at 633; see also

United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993). Consequently, Rule

32.1(a)(2) is triggered only when the government takes a defendant into custody

for violating the conditions of his parole or supervised release, not by the mere

issuance of a detainer or warrant for arrest. The district court found that

Fernandez was not being held on the outstanding warrant for violation of his
- 4 -

supervised release because the warrant had not been executed. Instead, Fernandez

is currently held in custody for the sentence he received for his 1993 conviction in

Texas. As a result, no triggering event has occurred requiring the holding of a

revocation hearing within a reasonable time under Rule 32.1(a)(2).

Second, Fernandez argues that the detainer lodged against him has deprived

him of the ability to take advantage of various educational and rehabilitative

programs offered by the Bureau of Prisons in violation of his constitutional right

to due process. However, we noted in McDonald that "the Supreme Court has

rejected the concept that these kinds of adverse consequences . . . trigger a due

process concern." Id. at 634 (citing Moody v. Daggett, 429 U.S. 78, 88 n.9

(1976)). Therefore, Fernandez's due process claim also must fail.

For these reasons, we AFFIRM the district court's order denying

Fernandez's Motion to Discharge Term of Supervised Release.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge